Debacle: How the supreme court has mangled American sentencing law and how it might yet be mended

University of Chicago Law Review

Volumn 77, Issue 1, 2010, Pages 367-477

  Bowman, Frank O ^a  

^a UNIVERSITY OF MISSOURI   (United States)

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EID: 77955497811     PISSN: 00419494     EISSN: None     Source Type: Journal    
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References (109)

1. 477 US 79 (1986).
2. 530 US 466 (2000).
3. 542 US 296 (2004).
4. 543 US 220 (2005).
5. 129 S Ct 711 (2009).
6. 397 US 358 (1970).
7. 536 US 545 (2002).
8. See Frank O. Bowman, III. The Quality of Mercy Must Be Restrained, and Other Lessons in Learning to Love the Federal Sentencing Guidelines, 1996 Wis L Rev 679, 680-89.
9. See also Kate Stith and Steve Y. Koh, The Politics of Sentencing Reform: The Legislative History of the Federal Sentencing Guidelines. 28 Wake Forest L Rev 223, 227 (1993).
10. Pamala L. Griset. Determi-nate Sentencing: The Promise and Reality of Retributive Justice 11-12 (SUNY 1991).
11. The ancient common law power of judges to define new crimes through adjudication had essentially vanished by the late twentieth century. John Calvin Jeffries, Jr, Legality, Vagueness, and the Construction of Penal Statutes. 71 Va L Rev 189,195 (1985) ("Judicial crime creation [in the United States] is a thing of the past.").
12. See, for example, Williams v New York, 337 US 241, 248 (1949) (discussing "[tjoday's philosophy of individualizing sentences").
13. Bowman, 1996 Wis L Rev at 684 (cited in note 8). In 1981, one commentator observed that
14. Francis A. Allen, The Decline of the Rehabilitative Ideal 3 (Yale 1981) ("[T]he nature of the rehabihtative ideal is profoundly affected by whether rehabilitation is seen as the exclusive justification of penal sanctions (as was very nearly the stance of some exuberant American theorists in mid-twentieth century).").
15. See Koon v United States, 518 US 81, 96 (1996) ("Before the Guidelines system, a federal criminal sentence within statutory limits was, for all practical purposes, not reviewable on appeal.").
16. See. for example, Ronald F. Wright, Counting the Cost of Sentencing in North Carolina, 29 Crime & Justice 39, 43 (2002) (describing North Carolina sentencing practices prior to 1981, which involved largely unconstrained front-end judicial sentencing discretion combined with a back-end parole release mechanism, as "typical for the times").
17. See also Sandra Shane-DuBow, Alice P. Brown, and Erik Olsen, Sentencing Reform in the United States: History, Content, and Effect 4 (Na-tional Institute of Justice 1985) (outlining the development of states' probation and parole policies, and noting that "[b]y 1922,⋯ forty-four states" had instituted parole mechanisms).
18. Beginning in 1910, federal prisoners became eligible for parole release after serving one- third of the term imposed by the court. Farole boards had discretion in release determinations. Peter B. Hoffman, History of the Federal Parole System 6 (DOJ 2003), online at http://www.usdoj.gov/uspc/history.pdf (visited Dec 11,2009).
19. See notes 344-45 and accompanying text.
20. US Const Amend V.
21. US Const Amend VI.
22. See, for example. Duncan v Louisiana, 391 US 145, 149 (1968) (holding that the Fourteenth Amendment provides defendants with the right to a trial by jury in state criminal proceedings whenever such a right would be granted in federal court).
23. See Patterson v New York, 432 US 197,210 (1977).
24. Winship, 397 US at 361-64.
25. See, for example, Miranda v Arizona, 384 US 436, 461,465 & n 35,467 (1969) (extending to the setting of police interrogation the Fifth Amendment right not to be compelled to be a "witness" against oneself and the Sixth Amendment right to counsel).
26. One might quibble with this characterization, noting, for example, that juries are asked not only to determine whether particular events occurred, but also to make mixed judgments of law and fact, such as whether or not given congeries of behavior and attendant circumstances amount to "negligence. " But lawyers refer to such judgments as determinations of fact, and in any case, juries are at most asked to determine whether certain combinations of facts fit within predefined legal categories and not to define the categories themselves.
27. In 1960, roughly 25 percent of all states maintained jury sentencing for non-capital felo
28. Frank O. Bowman. Ill, Fear of Law: Thoughts on 'Fear of Judging' and the State of the Federal Sentencing Guidelines, 44 SLU L J 299,311 (2000).
29. The Supreme Court's death penalty jurisprudence created mandatory jury sentencing phases in capital trials. See Gregg v Georgia. 428 US 153,190-91 (1976).
30. But see Walton v Arizona, 497 US 639. 648 (1990) (noting that judges may make sentencing decisions because "the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury"), quoting Hildwin v Florida, 490 US 638,640-41 (1989) (per curiam).
31. See, for example, Williams, 337 US at 249-51 (holding that due process allows judges broad discretion as to sources and types of information relied upon at sentencing and does not require confrontation or cross-examination at sentencing).
32. To say that late twentieth-century judges had become used to substantial front-end sentencing discretion is not the same thing as suggesting, as Justice John Paul Stevens, Justice Sandra Day O'Connor, and others sometimes do. that largely unfettered judicial discretion with in broad statutory limits had, until recently, been the nearly invariable practice in American law since soon after the nation's Founding. See Apprendi, 530 US at 481-82 (2000); id at 544-45 (O'Connor dissenting) (relying on past Court precedent "approving] of-and the significant history in this country of-discretionary sentencing" in asserting that the majority's rule need not necessarily invalidate the Guidelines). To the contrary, the center of gravity for sentencing discretion among judges, juries, and legislatures has varied considerably from time to time and jurisdiction to jurisdiction. See Bowman, 44 SLU L J at 311-15 (cited in note 21).
33. See Kate Stith and Jose A. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts 28-29 (Chicago 1998) (discussing sentencing ethos of pre-Guidelines federal judges).
34. Griset. Determinate Sentencing at 11 (cited in note 8) (discussing the rise of the rehabilitative "juggernaut" between 1877 and 1970 and noting that "[a] medical analogue was frequently invoked").
35. See Stith and Cabranes. Fear of Judging at 78-79 (cited in note 25) (noting that "adjudi cation has more in common with scientific than with moral reasoning," but arguing that the latter concept is more consistent with what they see as the sentencing judge's duty to perform a sort of Aristotelian equity judgment). See also Bowman, 44 SLU L J at 319-26 (cited in note 21) (critiqu ng the Stith and Cabranes discussion ot moral reasoning by sentencing judges).
36. See Frank O. Bowman, III, Murder, Meth, Mammon and Moral Values: The Political Landscape of American Sentencing Reform, 44 Washburn L J 495, 498-99 (2005) (discussing the novelty of modern American recreational drug use).
37. See also Frank O. Bowman, III, Playing "21" with Narcotics Enforcement: A Response to Professor Carrington, 52 Wash & Lee L Rev 937, 951-55 (1995) (recounting Americans' use ot cocaine, opiates, and marijuana in the nineteenth and twentieth centuries, and characterizing the stages ot Americans' reactions as "discovery, excitement, abuse, disillusionment, and prohibition, all crammed into a tew short decades").
38. Steven B. Duke and Albert C. Gross, America's Longest War: Rethinking Our Tragic Crusade against Drugs 43-46 (Putnam 1993).
39. See David Garland, The Culture of Control: Crime and Social Order in Contemporary Society 89-102 (Chicago 2001).
40. See Bowman. 52 Wash & Lee L Rev at 972 (cited in note 28).
41. Albert W. Alschuler, Sentencing Reform and Prosecutorial Power: A Critique of Recent Proposals for "Fixed" and "Presumptive" Sentencing, 126 U Pa L Rev 550,552 (1978) (noting the practical difficulty proponents of rehabilitation encounter when they attempt "[t]o probe a per-son's psyche and predict his future behavior"). See also Bowman, 1996 Wis L Rev at 688-89 (cited in note 8).
42. Bowman, 1996 Wis L Rev at 686-88 (cited in note 8). See also Comprehensive Crime Control Act of 1984, S Rep No 98-225,98th Cong. 2d Sess 38 (1983). reprinted in 1984 USCCAN3182, 3221 (concluding that the unreformed sentencing rules permitted "an unjustifiably wide range of sentences" even among similar offenders).
43. See Bowman. 1996 Wis L Rev at 688 (cited in note 8).
44. See, for example, Jonathan D. Casper, Determinate Sentencing and Prison Crowding in Illinois, 1984 U 111 L Rev 231,235-36.
45. For example, some critics argued that delegating to parole boards so much power to determine real sentence length made judicial sentencing more ceremonial than real; they wanted "truth in sentencing." that is. a stronger correlation between the sentence announced by the judge and the time actually served by the defendant. See Bowman. 1996 Wis L Rev at 686-89 (cited in note 8).
46. See. for example, Colo Rev Stat Ann § 18-1.3-401(l)(a)(V)(A) (West) (establishing six
47. Colo Rev Stat Ann § 18-1.3-401(6) (West): If the court finds ⋯ extraordinary mitigating or aggravating circumstances, it may impose a sentence which is lesser or greater than the presu ptive range; except that in no case shall the term of sentence be greater than twice the maximum nor less than one-half the minimum term authorized in the presumptive range for the punishment of the offense.
48. See also Lopez v People, 113 P3d 713, 723-25 (Colo 2005) (describing Colorado's aggravated sentencing scheme under § 18-1.3-401(6) as allowing for judicial factfinding, and holding that the US Constitution requires that the jury find aggravated facts beyond a reasonable doubt, except in limited situations where the judge may do so).
49. See, for example, Va Code § 19.2-298.01 (establishing rules governing use of discretio nary sentencing guidelines).
50. See, for example. Sentencing Reform Act of 1984 § 218(a)(5), Pub L No 98-473, 98 Stat 1837. 2027, repealing 18 USC § 4201 et seq (providing for federal parole system). Structured sentencing need not be coupled with elimination of parole release authority.
51. For a powerful argument in favor of reviving back-end release authority in structured sentencing systems, see Steven L. Chanenson, The Next Era of Sentencing Reform, 54 Emory L J 377,433 (2005).
52. These devices are not mechanisms of structured sentencing, properly understood, and can subvert its aims. Structured sentencing seeks a set of rules that guide, but do not eliminate, the exercise of judicial discretion, while mandatory minimums place absolute limits on judicial discretion. Likewise, the structured sentencing movement is as much about the process by which rules are made as about the substance of the rules. The process is supposed to be a collaboration among interested institutions that blends considerations of politics and professional judgment. Mandatory minimum sentences and factual add-ons tend to be legislative diktats imposed with little consideration of how they fit into the sentencing structure on which they are imposed.
53. See, for example. 21 USC § 841(b) (setting the penalty range for manufacturing, distributing, dispensing, or possessing with intent to distribute a Schedule I or II controlled substance at zero to twenty years, but increasing the penalty range to five to forty years where specified amounts were involved, and to ten years to life imprisonment where larger specified amounts were involved).
54. Federal law doubles the maximum penalty for distributing, manufacturing, or possessing controlled substances on or within one thousand feet of all public and private schools, colleges, public housing authority playgrounds, public swimming pools, or video arcade facilities. 21 USC § 860(a). Federal law also doubles the maximum punishment for drug offenses committed in, on, or within 1,000 feet of a truck stop or safety rest area. 21 USC § 849(b)(1). Proof of the requisite proximity sometimes also triggers a minimum sentence in addition to the enhanced maximum. See, for example, 21 USC § 860(a) (imposing one-year mandatory minimum sentence for distribution near the specified child-related facilities).
55. Many jurisdictions have enacted statutes increasing penalties for offenders who cause injury or use firearms, even if the underlying offense of conviction does not have weapon use or injury as one of its elements. See, for example, McMillan. 411 US at 84-85 (upholding a Pennsyl- vania statute imposing five-year mandatory minimum sentence for "visible possession" of a firearm in connection with certain enumerated offenses).
56. Such recidivist enhancements can take the form of so-called "three strikes" laws that impose substantial minimum sentences on defendants convicted of a specified number of prior offenses See, for example, Ewing v California, 538 US 11.15 (2003) (describing and upholding a California "three strikes" statute imposing sentence of twenty-five years to life for theft of golf clubs).
57. See, for example, 21 USC § 860(c) (tripling maximum sentence for one who employs a minor to distribute drugs near schools or playgrounds).
58. See. for example, McMillan, 411 US at 88 (noting that Pennsylvania's law proscribing "visible possession" of a firearm while engaged in certain other felonious conduct '"ups the ante' for the defendant only by raising to five years the minimum sentence which may be imposed").
59. See, for example. Colo Rev Stat Ann § 18-1.3-406 (West) (prescribing a minimum sentence at the midpoint of the presumptive range and doubling the maximum of the presumptive range for crimes involving the use of a deadly weapon or causing serious bodily injury or death).
60. See. for example. 18 USC § 924(c) (imposing a term of years consecutive to the sentence for the underlying offense upon defendant who "during and in relation to any crime of violence or drug trafficking crime ⋯ uses or carries a firearm").
61. See notes 349-50 and accompanying text.
62. McMillan, All US at 88.
63. See, for example, Susan N. Herman, The Tail That Wagged the Dog: Bifurcated Fact-Finding under the Federal Sentencing Guidelines and the Limits of Due Process, 66 S Cal L Rev 289,334-37(1992).
64. Id at 304-05.
65. Id at 307-10 (proposing that the "true reason" why legislatures allow for sentencing- phase factfinding is that it opens the door for the judge to consider "conduct that has not been proven beyond a reasonable doubt").
66. See generally Frank O. Bowman, III, Completing the Sentencing Revolution: Reconsidering Sentencing Procedures in the Guidelines Era, 12 Fed Sent Rptr (Vera) 187 (2000).
67. See Kevin R. Reitz, Reporter's Introductory Memorandum, Model Penal Code: Sentencing (Tentative Draft No I) xxxiii-xxxvii (ALI 2007).
68. See also Bowman, 44 SLU L J at 325-26 (cited in note 21).
69. Julie R. O'Sullivan, In Defense of the U.S. Sentencing Guidelines Modified Real Offense System, 91 Nw U L Rev 1342,1386-87 (1997).
70. Bowman. 12 Fed Sent Rptr at 187 (cited in note 51).
71. 397 US at 364. Because Winship was a juvenile case, it did not implicate the Sixth Amendment jury trial right.
72. See In re Gault, 387 US 1, 13 (1967) (holding that the Constitution does not grant juveniles in the juvenile court system the panoply of rights adults are guaranteed in analogous criminal proceedings, and noting that "the juvenile is not entitled to bail, to indictment by grand jury, to a public trial or to trial by jury").
73. See McMillan, 477 US at 93 (rejecting petitioners' argument that they were entitled to a jury trial on the question ot "visible possession" which triggered a five-year mandatory minimum sentence because this tact was a sentencing factor and not an element of a crime).
74. 421 US 684 (1975).
75. See generally Ronald J. Allen. Mullaney v. Wilbur, the Supreme Court, and the Substantive Criminal Law-An Examination of the Limits of Legislative Intervention, 55 Tex L Rev 269 (1977).
76. 421 US at 686 n 3, quoting 17 Me Rev Stat Ann § 2651 (1964) ("Whoever unlawfully kills a human being with malice aforethought, either express or implied, is guilty of murder and shall be punished by imprisonment for life."), repealed by 1975 Me Laws 499 § 15.
77. Mullaney, 421 US at 686-87.
78. Id at 694-96.
79. 432 US 197(1977).
80. As numerous commentators have observed, in Patterson, the Court "signaled] that it had erred in Mullaney."
81. Ronald J. Allen, Montana v. Eglehoff - Reflections on the Limits of Legislative Imagination and Judicial Authority, 87 J Crim L & Criminol 633, 645 (1997).
82. See also Joshua Dressier, Understanding Criminal Law 68 (LexisNexis 3d ed 2001).
83. Dressler, Understanding Criminal Law at 542 (cited in note 61).
84. Patterson, 432 US at 198, quoting NY Penal Law § 125.25(l)(a) (McKinney 1975).
85. Patterson, 432 US at 210.
86. Id at 221-25 (Powell dissenting) (deriding the Court's jurisprudence concerning affirmative defenses as indefensibly "formalistic").
87. See, for example, Joshua Dressier, Kent Greenawalt, Criminal Responsibility, and the Supreme Court: How a Moderate Scholar Can Appear Immoderate Thirty Years Later, 1A Notre
88. Linda S. Eads. From Capone to Boesky: Tax Evasion, Insider Trading, and Problems of Proof 79 Cal L Rev 1421,1469 n 243 (1991).
89. Patterson, 432 US at 202-03,211.
90. See, for example, Commonwealth v Webster, 59 Mass 295,304 (1850) (requiring a murder defendant to prove heat of passion when the prosecution proves intentional killing).
91. See. for example, Martin v Ohio, 480 US 228, 233 (1987) (upholding a placement of the burden on defendant to prove the elements of self-defense).
92. I take this to be the Court's point when it opines that a state need not place on the government the burden of proving mitigating facts as to which "proof would be too difficult." Patter-son, 432 US at 207.
93. Id at 210.
94. 477 US at 82. McMillan's appeal was consolidated with those of three other similarly situated defendants. Id.
95. Id at 87.
96. Id at 82.
97. Mandatory Minimum Sentencing Act, 42 Pa Cons Stat Ann § 9712 (Purdon 1982).
98. See also McMillan, All US at 81 n 1.
99. McMillan, 411 US at 87-88.
100. Id at 88-90.
101. Sentencing Reform Act of 1984 ("SRA"). Pub L No 98-473,98 Stat 1837.
102. Rehnquist repeatedly alludes to the difference between element facts and facts relevant only to sentencing. See. for example. McMillan. All US at 92-93 (noting that in arriving at a sentence judges consider the " circumstances" of an offense, but insisting that the Court has never required that proof of those circumstances or other "related" facts surpass the reasonable doubt threshold).
103. 337 US 241, 250-52 (1949) (upholding as constitutional sentencing systems in which judges impose sentences within the range set by the crime of conviction as an exercise of discre tion without formal findings of fact subject to any burden of proof). One might also fairly surmise that Justice Rehnquist rejected Justice Stevens's proposed rule that if a fact will "give rise both to a special stigma and to a special punishment," it "must be treated as a 'fact necessary to constitute the crime' within the meaning of our holding in In re Winship." in part because its imprecise terms were open to the construction that any fact relied upon by a judge to justify a higher sentence than he would impose in its absence would have to be proven beyond a reasonable doubt. See McMillan, All US at 103 (Stevens dissenting).
104. McMillan, 411 US at 91.
105. This institutional deference was particularly congenial to Justice Rehnquist in cases involving state statutes because of his affinity for a revitalized federalism. Id at 85 (emphasizing that Patterson rests in part on the premise that "preventing and dealing with crime is much more the business of States than it is of the Federal Government"). For Justice Rehnquist's views on federalism, see generally Marci A. Hamilton, What Is Rehnquist Federalism?, 155 U Pa L Rev PENNumbra 8 (2007), online at http://www.pennumbra.com/responses/09-2006/Hamilton.pdf (visited Dec 11. 2009).
106. Richard A. Epstein, The Federalism Decisions of Justices Rehnquist and O'Connor: Is Half a Loaf Enough?, 58 Stan L Rev 1793 (2006).
107. Ann Althouse, Chief Justice Rehnquist and the Search for Judicially Enforceable Federalism, 10 Tex Rev L & Pol 275 (2006).
108. McMillan, All US at 85.
109. Id at 86.